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Bell v. State of Alaska and Harbor Adjustment Svc. (7/23/93), 855 P 2d 1334

NOTICE: This opinion is subject to formal correction before publication in the Pacific Reporter. Readers are requested to bring typographical or other formal errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that corrections may be made prior to permanent publication. THE SUPREME COURT OF THE STATE OF ALASKA DAVID L. BELL, ) ) Supreme Court Appellant, ) File No. S-5138 ) v. ) Superior Court ) File No. 4FA 91 299 CI STATE OF ALASKA AND HARBOR ) ADJUSTMENT SERVICE, ) O P I N I O N ) Appellees. ) [No. 3982 - July 23, 1993] ________________________________) Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Jay Hodges, Judge. Appearances: Debra Fitzgerald and Chancy Croft, Chancy Croft Law Office, Anchorage, for Appellant. Frank S. Koziol, Anchorage, for Appellees. Before: Moore, Chief Justice, Rabinowitz, Burke, Matthews and Compton, Justices. BURKE, Justice. RABINOWITZ, Justice, with whom COMPTON, Justice, joins, dissenting. For the reasons stated in Bailey v. Litwin Corp., 780 P.2d 1007, 1011-12 (Alaska 1989), the superior court's decision is AFFIRMED. RABINOWITZ, Justice, with whom COMPTON, Justice, joins, dissenting. In Wise Mechanical Contractors v. Bignell, 718 P.2d 971 (Alaska 1986) we noted that: [T]he objective of awarding attorney's fees in compensation cases is to ensure that competent counsel are available to represent injured workers. This objective would not be furthered by a system in which claimants' counsel could receive nothing more than an hourly fee when they win while receiving nothing at all when they lose. Id. at 975 (citation omitted). In the instant case the Board noted appellant's counsel's request for an award of enhanced attorney's fees "based on the alleged contingent nature of this case"(emphasis supplied) but then failed to explain why it denied the request.1 Given the Board's apparent misapprehension as to the contingent nature of attorney's fees in this type of litigation, and the objective of ensuring the injured worker's access to competent counsel, I would remand the matter to the Board for the purpose of requiring an explanation of its rejection of appellant's request for enhanced attorney's fees. _______________________________ 1. In Wise Mechanical Contractors v. Bignell, 718 P.2d at 975, we recognized that payment of attorney's fees is contingent upon claimant's success since "[a] contingency arrangement is ordinarily necessary because most injured claimants lack the financial resources to pay an attorney an hourly fee."